[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]





    H.R. 1507, THE WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                                   ON

                               H.R. 1507

    TO AMEND CHAPTER 23 OF TITLE 5, UNITED STATES CODE, RELATING TO 
    DISCLOSURES OF INFORMATION PROTECTED FROM PROHIBITED PERSONNEL 
                   PRACTICES, AND FOR OTHER PURPOSES

                               __________

                              MAY 14, 2009

                               __________

                            Serial No. 111-9

                               __________

Printed for the use of the Committee on Oversight and Government Reform


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                   EDOLPHUS TOWNS, New York, Chairman
PAUL E. KANJORSKI, Pennsylvania      DARRELL E. ISSA, California
CAROLYN B. MALONEY, New York         DAN BURTON, Indiana
ELIJAH E. CUMMINGS, Maryland         JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio             JOHN L. MICA, Florida
JOHN F. TIERNEY, Massachusetts       MARK E. SOUDER, Indiana
WM. LACY CLAY, Missouri              TODD RUSSELL PLATTS, Pennsylvania
DIANE E. WATSON, California          JOHN J. DUNCAN, Jr., Tennessee
STEPHEN F. LYNCH, Massachusetts      MICHAEL R. TURNER, Ohio
JIM COOPER, Tennessee                LYNN A. WESTMORELAND, Georgia
GERRY E. CONNOLLY, Virginia          PATRICK T. McHENRY, North Carolina
MIKE QUIGLEY, Illinois               BRIAN P. BILBRAY, California
MARCY KAPTUR, Ohio                   JIM JORDAN, Ohio
ELEANOR HOLMES NORTON, District of   JEFF FLAKE, Arizona
    Columbia                         JEFF FORTENBERRY, Nebraska
PATRICK J. KENNEDY, Rhode Island     JASON CHAFFETZ, Utah
DANNY K. DAVIS, Illinois             AARON SCHOCK, Illinois
CHRIS VAN HOLLEN, Maryland
HENRY CUELLAR, Texas
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
PETER WELCH, Vermont
BILL FOSTER, Illinois
JACKIE SPEIER, California
STEVE DRIEHAUS, Ohio
------ ------

                      Ron Stroman, Staff Director
                Michael McCarthy, Deputy Staff Director
                      Carla Hultberg, Chief Clerk
                  Larry Brady, Minority Staff Director
















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on May 14, 2009.....................................     1
Text of H.R. 1507................................................     8
Statement of:
    De, Rajesh, Deputy Assistant Attorney General, Office of 
      Legal Policy, Department of Justice........................    54
    Fisher, Louis, Special Assistant to the Law Librarian of 
      Congress, the Law Library of Congress; Robert F. Turner, 
      professor, associate director, Center for National Security 
      Law, University of Virginia School of Law; Thomas Devine, 
      legal director, Government Accountability Project; Angela 
      Canterbury, director of advocacy, Public Citizen, Congress 
      Watch Division; Michael German, policy counsel, American 
      Civil Liberties Union; and David Colapinto, general 
      counsel, National Whistleblowers...........................   110
        Canterbury, Angela.......................................   185
        Colapinto, David.........................................   228
        Devine, Thomas...........................................   151
        Fisher, Louis............................................   110
        German, Michael..........................................   214
        Turner, Robert F.........................................   132
    Greenhouse, Bunnatine H., former Procurement Executive and 
      Principal Assistant Responsible for Contracting [PARC], 
      U.S. Army Corps of Engineers; Franz Gayl, Science and 
      Technology Advisor to the Deputy Commandant for Plans, 
      Policies and Operations/Deputy Branch Head, U.S. Marine 
      Corps; and Teresa Chambers, former Chief, U.S. Park Police.    74
        Chambers, Teresa.........................................    98
        Gayl, Franz..............................................    80
        Greenhouse, Bunnatine H..................................    74
Letters, statements, etc., submitted for the record by:
    Braley, Hon. Bruce, a Representative in Congress from the 
      State of Iowa, prepared statement of.......................   262
    Canterbury, Angela, director of advocacy, Public Citizen, 
      Congress Watch Division, prepared statement of.............   187
    Chambers, Teresa, former Chief, U.S. Park Police, prepared 
      statement of...............................................   100
    Colapinto, David, general counsel, National Whistleblowers, 
      prepared statement of......................................   230
    Connolly, Hon. Gerald E., a Representative in Congress from 
      the State of Virginia, prepared statement of...............    53
    De, Rajesh, Deputy Assistant Attorney General, Office of 
      Legal Policy, Department of Justice, prepared statement of.    58
    Devine, Thomas, legal director, Government Accountability 
      Project, prepared statement of.............................   153
    Fisher, Louis, Special Assistant to the Law Librarian of 
      Congress, the Law Library of Congress, prepared statement 
      of.........................................................   113
    Gayl, Franz, Science and Technology Advisor to the Deputy 
      Commandant for Plans, Policies and Operations/Deputy Branch 
      Head, U.S. Marine Corps, prepared statement of.............    82
    German, Michael, policy counsel, American Civil Liberties 
      Union, prepared statement of...............................   216
    Greenhouse, Bunnatine H., former Procurement Executive and 
      Principal Assistant Responsible for Contracting [PARC], 
      U.S. Army Corps of Engineers, prepared statement of........    77
    Towns, Hon. Edolphus, a Representative in Congress from the 
      State of New York, prepared statement of...................     4
    Turner, Robert F., professor, associate director, Center for 
      National Security Law, University of Virginia School of 
      Law, prepared statement of.................................   134
    Watson, Hon. Diane E., a Representative in Congress from the 
      State of California, prepared statement of.................    49

 
    H.R. 1507, THE WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009

                              ----------                              


                         THURSDAY, MAY 14, 2009

                          House of Representatives,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:05 a.m., in 
room 2154, Rayburn House Office Building, Hon. Edolphus Towns 
(chairman of the committee) presiding.
    Present: Representatives Towns, Cummings, Kucinich, 
Tierney, Clay, Watson, Connolly, Quigley, Van Hollen, and Issa.
    Staff present: Beverly Britton Fraser, counsel; Peter Fise, 
staff assistant; Linda Good, deputy chief clerk; Adam Hodge, 
deputy press secretary; Carla Hultberg, chief clerk; Marc 
Johnson, assistant clerk; Mike McCarthy, deputy staff director; 
Adam Miles, professional staff member; Jenny Rosenberg, 
director of communications; Mark Stephenson, senior policy 
advisor; Shrita Sterlin, deputy director of communications; Ron 
Stroman, staff director; John Cuaderes, minority deputy staff 
director; Charles Phillips, minority chief counsel for policy; 
Dan Blankenburg, minority director of outreach and senior 
advisor; Adam Fromm, minority chief clerk and Member liaison; 
Kurt Bardella, minority press secretary; Chapin Fay and Marvin 
Kaplan, minority counsels; and Alex Cooper, minority 
professional staff member.
    Chairman Towns. The committee will come to order.
    First of all, I welcome Ranking Member Issa.
    Today's hearing is entitled, ``The Whistleblower Protection 
Enhancement Act of 2009.''
    H.R. 1507 is an important piece of legislation. This 
committee has reported favorably similar legislation on a 
bipartisan basis in each of the last two Congresses. The House 
of Representatives has twice passed similar bills, once in 2007 
with 331 votes, and again as a bipartisan amendment to the 
stimulus legislation earlier this year. Unfortunately, the 
stimulus amendment was removed in conference with the Senate. 
However, this provides us with the opportunity to hear from the 
new administration on this reform, to work and engage them on 
possible changes to the bill, and to consider the ongoing need 
for strong whistleblower protections.
    I want to thank Representatives Van Hollen and Platts for 
their efforts to support government whistleblowers. As this 
committee has long recognized, enhancing whistleblower 
protection helps us to fulfill our role of bringing about more 
honest, accountable and effective government for the American 
people.
    Whistleblowers risk their careers to challenge abuses of 
power and gross waste of government resources. At a time when 
America needs the best value for every dollar spent, we need 
these protections now more than ever. This is particularly true 
now that billions of stimulus dollars and billions more aimed 
at stabilizing the financial system are at stake.
    H.R. 1507 will ensure that the Federal employees 
responsible for monitoring the financial recovery programs are 
not deterred from reporting mismanagement of taxpayer dollars. 
Government employees are often in the best position to call 
attention to illegality and waste because they witness what is 
happening inside the government on a day-to-day basis.
    Unfortunately, as we will hear today, under the current 
inadequate system, whistleblowers have too often been left out 
to dry. Instead of being rewarded for their courage, they are 
actually being destroyed in some instances. Over the last 
decade, legal victories for public employees have been almost 
nonexistent. Employees have been fired and disciplined for 
disclosing evidence of waste, fraud and abuse simply because an 
administrative judge determined it was part of their job to do 
so.
    That is contrary to the whole point of the whistleblower 
law. If passed, H.R. 1507 would take a landmark step in 
restoring Congress' intent to protect employees from 
retaliation. Importantly, H.R. 1507 also extends strong 
whistleblower protection to employees of government 
contractors. Congress wisely included similar protections for 
private recipients of stimulus funds; however, no similar 
safeguard was included when Congress passed the bailout last 
fall. This bill would extend the right to disclose waste, fraud 
and abuse without fear of retaliation to employees of all 
government contractors, including those who accepted bailout 
funds.
    The Oversight Committee has documented the accountability 
and transparency shortcomings of the TARP program, and we will 
continue to do so. However, by empowering insiders to disclose 
any financial misconduct, this legislation provides an 
immediate accountability fix to that program.
    Last, whistleblower protections are important not only in 
safeguarding America's tax dollars; we need them to better 
protect our families. Toward this end, we have worked closely 
with the House Intelligence Committee in drafting strong 
whistleblower protections for national security personnel.
    Since September 11, 2001, it has become more and more 
evident that national security personnel need to be able to 
sound the alarm effectively without fear of reprisal and 
without having to turn to the media in order to do so. We need 
to provide national security personnel with safe, responsible 
channels for disclosing evidence of waste, fraud and abuse.
    H.R. 1507 also provides these employees with a meaningful 
remedy if they are retaliated against, something that does not 
exist under current law. This is an important aspect of the 
legislation that will strengthen the national security of the 
country, and I look forward to hearing more from our witnesses 
on this issue.
    We're pleased that the administration is testifying today 
to express the President's support for the principles of 
protecting whistleblowers to offer constructive comments on how 
this bill can be strengthened and implemented.
    Although whistleblower legislation often involves 
disagreement between the executive and the legislative 
branches--we understand that--I am encouraged by the efforts to 
resolve these differences and promote greater accountability 
and transparency in government.
    I will close by noting simply that this legislation is 
long, long, long overdue. And without whistleblowers and the 
unfiltered information that only insiders can provide, the 
oversight and investigative functions vested in Congress would 
be seriously compromised.
    I am pleased to have the opportunity today to hear from the 
administration, employees, and experts about this reform.
    Now I yield 5 minutes to the ranking member of the 
committee, with whom I have worked very hard along with the 
sponsors of this bill to get us here today. Congressman Issa 
from the great State of California.
    [The prepared statement of Hon. Edolphus Towns and the text 
of H.R. 1507 follow:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Issa. Thank you, Mr. Chairman. And thank you for 
calling this important hearing today and for your bipartisan 
support of whistleblower protections and this bill.
    We are here today to hear from the administration because 
waste, fraud and abuse is the mandate of this committee. The 
tools we need in order to undercover waste, fraud and abuse are 
our own staff we regularly count on, Government Accountability 
Office, the IGs of the various agencies, and absolutely, 
without fail, whistleblowers, both in and out of the 
government. Without these individuals willing to come forward 
and uncover the most dangerous failures within the government, 
we would find ourselves exposed from a national security 
standpoint, we would find ourselves exposed from a financial 
standpoint, and, in this day of increasing litigious activity, 
we might often find ourselves the subject as defendants in 
lawsuits because of our failure to know what we needed to know.
    During this hearing, we will be able to examine current law 
that protects whistleblowers and review the need for 
strengthening those laws. We will also be able to highlight, 
discuss, and explore any issues that may be raised by expanding 
existing whistleblower protections. And I might note that these 
protections have been contracting because of decisions made by 
the courts, so many of the expansions today are, in fact, 
simply restoring what was the original intent of Congress.
    The support and protection of whistleblowers in the Federal 
Government is obviously vital to rooting out the waste, fraud, 
and abuse and mismanagement. Expansion of these laws may, 
however, raise some important issues and create unintended 
real-world consequences when implemented.
    We look forward to hearing from the administration any 
questions, comments or any scenarios that they believe may not 
have been considered in this legislation thus far.
    Like all legislation, it can have unintended consequences. 
We look forward to active dialog to ensure that we minimize 
that, but we cannot allow the continued loss or degradation of 
whistleblower laws that today cause us not to have the full 
support of both our contractors and our government employees.
    Mr. Chairman, I might note that next door in Judiciary, we 
moved a very expansive piece of legislation that expands the 
ability to sue or profit the American Government at all 
levels--Federal, State and local--for Federal protection and 
recover moneys. Now, that is well-meaning legislation, it has 
been on the books since Abraham Lincoln, and it's important, 
but we cannot have just plaintiff trial lawyers doing the work 
of the people.
    And I might particularly note and ask for unanimous consent 
to be included in the record that issues----
    Chairman Towns. Without objection, so ordered.
    Mr. Issa. Issues, such as the Jane Harman issue where she 
was wiretapped, but Congress was unaware that a Member of 
Congress had, in fact, been picked up on a wiretap of another 
investigation. That was withheld until a whistleblower made it 
obvious. So not all whistleblowers involve money or even, per 
se, mismanagement, but often can result in us getting need-to-
know information. We cannot allow ourselves not to have that 
need-to-know information.
    I thank the chairman for his leadership and yield back.
    Chairman Towns. At this time I yield 5 minutes to the man 
that is really responsible for us being here, a person who has 
done a marvelous job on this legislation. The gentleman from 
Maryland Mr. Van Hollen is recognized for 5 minutes.
    Mr. Van Hollen. Thank you very much, Mr. Chairman. I want 
to thank you and Mr. Issa for holding this hearing today, and I 
am not going to take my 5 minutes because I want to associate 
my remarks with both of the gentlemen, the chairman and the 
ranking member.
    I've worked very closely with Mr. Platts on this 
legislation as well as other members of this committee and 
other Members of Congress. As both the chairman and the ranking 
member have said, I think we feel it imperative to move forward 
and strengthen whistleblower protections. Yesterday the House 
passed legislation on a bipartisan basis to strengthen the 
procurement rules and regulations of the Department of Defense 
so that we could make sure taxpayers were better protected. 
This is part of that effort, and we welcome any constructive 
suggestions that the witnesses may have to offer.
    I thank the chairman.
    Chairman Towns. Any other Member seeking recognition?
    Mr. Kucinich of Ohio.
    Mr. Kucinich. Thank you very much, Mr. Chairman.
    Federal employees who do the right thing and expose 
wrongdoing that is happening in their job within their sphere 
of activity deserve to be thanked, not punished, and yet we 
know that various court decisions do not protect employees when 
they come forward with information that is vital to the public 
interest.
    Government isn't some insular game. Government isn't a rule 
unto itself. What makes us a democracy is transparency so we 
can actually see what's happening, and, if something is going 
wrong, that we have a chance to make it right.
    The secrecy that has surrounded our government has put our 
Nation's democracy in jeopardy, and this approach toward 
transparency, which is reflected in the bill that is being 
discussed and in Congress' approach to try to restore 
whistleblower protection, is really vital to try to restore 
trust in government and trust in the Congress' ability not just 
to provide oversight, but to make sure that those who have 
information feel free to come forward with that information and 
not be punished for it.
    Thank you, Mr. Chairman. I yield back.
    Chairman Towns. I recognize the gentlewoman from California 
Ms. Watson.
    Ms. Watson. Thank you so much, Mr. Chairman, for today's 
hearing on H.R. 1567, the Whistleblower Enhancement Protection 
Act of 2009. I am looking forward to hearing about the new 
administration's plan to enhance whistleblower protection for 
Federal employees and contractors, and hearing testimony from 
Federal employees who have faced retaliation for filling their 
duty to expose evidence of waste, fraud and abuse.
    The healthy functioning of our government and the 
likelihood of this committee to properly oversee its operations 
depends on the ability of Federal employees and contractors to 
report instances of corruption and misuse without fear of 
reprisal. For this reason I was pleased to vote for similar 
legislation in each of the last Congresses and look forward to 
seeing these provisions finally signed into law by our new 
President.
    Federal employees and contractors are often our first and 
only line of defense against government waste and manipulation, 
while recent history makes their dual role as civil servants 
and watchdogs even more crucial. The unprecedented levels of 
government spending in the American Recovery and Reinvestment 
Act of 2009 and the current engagements in Iraq and Afghanistan 
require detailed oversight from Congress, which would be 
impossible without the honest disclosure from Federal employees 
and contractors of what is really happening on the ground. It 
is critical to our economic and our national security that 
Congress is notified of instances of waste, fraud and abuse, 
and that these employees are willing and able to share their 
information and are able to remain a part of our civil 
infrastructure.
    And so I would like to thank each of the witnesses today 
for their testimony as we seek to strengthen the protections 
for those with the courage to fulfill their duties and disclose 
evidence of waste, fraud and abuse.
    I yield back my time. Thank you, Mr. Chairman.
    [The prepared statement of Hon. Diane E. Waxman follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Chairman Towns. I recognize the gentleman from Virginia Mr. 
Connolly.
    Mr. Connolly. Thank you, Mr. Chairman, and thank you for 
holding this important hearing.
    After 8 years of unprecedented secrecy and bizarre claims 
of Executive privilege, it is essential that this committee act 
to restore transparency to the Federal Government. The 
Whistleblower Protection Enhancement Act is a crucial part in 
that endeavor.
    The primary reason we should enhance protection for 
whistleblowers is because it is in our national interest to do 
so. A lack of whistleblower protection simply cloaks problems 
that cannot be solved until we are aware of them. We will hear 
compelling testimony today from Teresa Chambers, who was fired 
from the U.S. Park Police for accurately reporting the capacity 
of her agency. We must know about agency issues, such as this 
one that she brought to the public's attention if we are to 
solve the problem. Ms. Chambers seems to have been fired as a 
result of political interference by the prior administration.
    Perhaps greater oversight into the operation of agencies, 
such as the Federal Emergency Management Agency, could have 
mitigated the catastrophic impact of Hurricane Katrina. But 
regrettably, at that time, Congress and the public did not 
learn about agency shortcomings until after the disaster 
struck.
    In his written testimony today, Louis Fisher states the 
Presidential authority to keep information secret has been 
exaggerated. Legislative action such as that outlined in H.R. 
1507 could preclude a recurrence of administrative issuance of 
directives for our military to torture detainees as a standard 
method of interrogation, for example.
    Of course, whistleblower protections are essential for 
Federal agencies to function efficiency; however, it is even 
more critical to protect whistleblowers so we may identify and 
correct shortcomings in our effort to guard against terrorist 
attack, crime and natural disaster. I applaud this legislation. 
I particularly applaud the leadership of our colleague Mr. Van 
Hollen from Maryland. I look forward to supporting the 
legislation and to these hearings.
    Thank you, Mr. Chairman.
    [The prepared statement of Hon. Gerald E. Connolly 
follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Chairman Towns. I don't see Mr. Platts, but he also had a 
great role in making certain that he was very involved with 
this along with Congressman Van Hollen as well.
    We will turn now to our first panel, which will consist of 
one government witness. Mr. De recently joined the Obama 
administration as a Deputy Assistant Attorney General in the 
Justice Department's Office of Legal Policy. Before joining the 
administration, Mr. De was a partner at Mayer Brown. Previously 
he had served as general counsel to the Commission on the 
Prevention of WMD Proliferation and Terrorism, counsel to the 
Senate's Homeland Security and Governmental Affairs Committee, 
and counsel to the 9/11 Commission.
    Before we hear from the witness, I want to note that we 
have several government agencies in attendance today, all of 
which, I understand, worked together in preparing the testimony 
that Mr. De will deliver. I thank all of you for that. Thank 
you for your involvement and also that you recognize how 
important this is as well.
    Mr. De, it is longstanding committee policy that we swear 
our witnesses in. So could you please stand and raise your 
right hand?
    [Witness sworn.]
    Chairman Towns. Let the record reflect the witness answered 
in the affirmative.

  STATEMENT OF RAJESH DE, DEPUTY ASSISTANT ATTORNEY GENERAL, 
         OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE

    Mr. De. Good morning, Mr. Chairman, Mr. Ranking Member, 
members of the committee. Thank you for the opportunity to 
appear today to discuss the Whistleblower Protection 
Enhancement Act.
    This administration strongly protects--strongly supports 
protecting the rights of whistleblowers. We recognize that the 
best source of information about waste, fraud and abuse in 
government is often a government employee committed to public 
integrity and willing to speak out. Empowering whistleblowers 
is a keystone of the President's firm commitment to ensuring 
accountability in government.
    A government employee who speaks out about waste, fraud and 
abuse performs a valuable public service. Such acts of courage 
and patriotism, which can sometimes save lives and often save 
taxpayer dollars, should be encouraged rather than stifled. But 
too often, whistleblowers are afraid to call attention to 
wrongdoing in their own workplace. We need to empower all 
Federal employees as stewards of accountability. Put simply, 
accountability cannot solely be imposed from the top down.
    The bottom line is we cannot tolerate waste, fraud and 
abuse, and we must make sure that Federal employees at all 
levels are able to do what it takes to eliminate it. At the 
same time, we must preserve the President's constitutional 
responsibility with regard to the security of national security 
information and ensure that agency managers have effective 
tools to discipline employees who themselves may be engaged in 
waste, fraud and abuse.
    We recognize that the executive branch and Congress have 
long held differing views regarding the extent of the 
President's constitutional authority over national security 
information. Putting aside those constitutional differences to 
the extent possible, our focus today is achieving common ground 
and a workable solution toward our shared goal of increasing 
protections for Federal whistleblowers, including those who 
work in the national security realm.
    Creating a system that sets up the right incentives for 
Federal employees and managers is not easy, as evidenced by 
multiple efforts to reform the system in the past three 
decades. This administration believes that the time has come to 
amend the system once again.
    I would like to discuss some key components of the 
whistleblower reform legislation both with respect to Civil 
Service reform and the national security interests that are of 
interest to this committee.
    Turning first to the Civil Service reform issues. This bill 
would make a number of important changes to the ways in which 
whistleblower claims are adjudicated. For example, the bill 
would, for the first time, allow whistleblowers to obtain 
compensatory damages. That is a matter of both simple fairness 
and of practicality. A whistleblower who suffers retaliation 
should be made whole, plain and simple, and we agree with this 
measure.
    This bill also makes several important changes to the 
definition of what would constitute a protected disclosure. 
Under current law, a whistleblower is not protected if she 
informs her boss of wrongdoing, only to later find out that her 
boss was the very person responsible for the wrongdoing. Thus, 
under current law, the employee would be protected for going to 
the Washington Post, but not for going to her own boss. 
Changing the law to eliminate this disparity would encourage 
employees to tell their supervisors about problems in the first 
instance, which is usually the easiest way to resolve them.
    This administration also supports modification of what is 
known as the normal-duty disclosure rule. Under that rule, an 
employee is not protected when he discloses wrongdoing as part 
of his normal job duties unless he makes that disclosure 
outside of normal channels. This administration believes, 
however, that normal-duty disclosures should be protected, 
particularly when public health and safety are at stake.
    Beyond the Civil Service arena, this administration also 
believes that whistleblowers in the national security realm 
must have a safe and effective method of disclosing wrongdoing 
without fear of retaliation. We are pleased to see that this 
bill provides full whistleblower protections to Transportation 
Security Administration screeners who literally stand at the 
front lines of our Nation's homeland security system. They 
deserve the same whistleblower protections as all other 
employees of the Department of Homeland Security.
    As this committee knows, the Intelligence Community is 
generally excluded from the existing Whistleblower Protection 
Act. The Intelligence Community Whistleblower Protection Act of 
1998 represents Congress' most recent attempt to provide a safe 
and effective channel for national security whistleblowers to 
report wrongdoings. That act provides a vehicle for 
Intelligence Community employees to report matters of urgent 
concern to Congress. The ICWPA, however, affords the individual 
employee no avenue for a potential disclosure beyond her 
specific agency.
    This administration believes that no Federal agency should 
be able to hide its own wrongdoing. For this reason, we 
proposed the creation of an extra-agency avenue within the 
executive branch for Federal employees who wish to make 
classified disclosures to Congress under the ICWPA. This 
mechanism could be composed of senior Presidentially appointed 
officials from key agencies within and outside the Intelligence 
Community, including inspectors general, and would ensure that 
no individual agency can rely inappropriately on alleged 
classification concerns to stifle disclosure of waste, fraud 
and abuse.
    If, under the procedures set forth under the ICWPA, an 
agency head declines to transmit information to Congress or 
declines to provide instructions to the employees on how he may 
do so, the employee could appeal to this new entity, which 
could overrule the agency head. Individual employees, moreover, 
we believe, should be entitled to alert Congress to the fact 
that they have raised a potential disclosure in the ICWPA 
process or with this new executive branch.
    We also believe that the extra-agency mechanism could 
provide a better vehicle to review alleged retaliatory security 
clearance revocations from the system currently set forth in 
H.R. 1507. We are aware that this committee has heard testimony 
in the past from individuals who have claimed that their 
security clearances were revoked due to whistleblowing 
activities. This administration has zero tolerance for such 
actions. An agency mechanism--extra-agency mechanism could 
recommend full relief to the aggrieved employee, including 
restoration of the clearance, and could ensure that Congress 
would be notified if that recommendation is not followed. This 
mechanism would ensure that no agency would remove a security 
clearance as a way to retaliate against an employee who speaks 
truth that the agency does not want to hear.
    Of course, retaliation may take many forms, and we are 
committed to providing more general protections for 
Intelligence Community whistleblowers. Such whistleblowers 
expose flaws in programs that are essential for protecting our 
collective national security. One complication, of course, is 
that Intelligence Committee whistleblowers may well reveal 
waste, fraud and abuse in activities that take place within 
highly classified programs. Due to the sensitive nature of the 
issues involved, we believe that Federal District Court review 
may not be the appropriate vehicle for Intelligence Community 
whistleblowers. Rather, a better vehicle may well be the extra-
agency mechanism within the executive branch, which we propose 
to create.
    Of course, we look forward to working with the committee in 
a constructive dialog to craft a scheme that satisfies all of 
our shared goals.
    Finally, this legislation is merely one step in this 
administration's plan to assure accountability in government. 
We appreciate the efforts that this committee has made to 
devise whistleblower protections that work. We look forward to 
working with you to revise and improve this legislation.
    With that, I would be pleased to take your questions.
    Chairman Towns. Thank you very much, Mr. De, for your 
testimony.
    [The prepared statement of Mr. De follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Chairman Towns. Let me just announce to the Members that we 
have five votes on the floor, which means that we need at least 
an hour. So we will go on a break and be back at 11:30.
    So, Mr. De, we do have to vote around here, so why don't we 
stop at this point, and then we will go vote and come back at 
11:30. Thank you very much for your testimony, and we will 
continue our questioning when we return.
    [Recess.]
    Chairman Towns. The committee will come to order.
    Let me begin by first apologizing for the delay. There were 
some procedural votes that we didn't anticipate. So that 
delayed us even further.
    Mr. De, one of the witnesses on our next panel notes that 
an intolerance of criticism by the previous administration was 
one of the reasons she was treated so harshly after disclosing 
safety concerns.
    I believe that the willingness to accept criticism is a 
sign of strength and something that all leaders should embrace. 
President Obama seems to recognize the need to tolerate 
dissent; but I wonder what actions are being taken to send this 
message to the agency managers, because sometimes you have 
feelings about these and it is not conveyed to the managers, of 
course, and the secretaries in terms of the views of the 
individual that is providing overall leadership.
    Mr. De. Thank you, Mr. Chairman. As you note, the President 
has clearly expressed and signaled his strong commitment not 
only to whistleblowers but to broader transparency and 
accountability initiatives.
    I think the general philosophy that we have seen take hold 
from this administration is, we all want to see--we all want to 
get to the right answers in the right way. And an as example of 
the sort of message that has gone to agency heads from the 
President directly, I would refer you to a March 9th 
memorandum, Presidential memorandum, that went to all agency 
heads specifically related to the subject of scientific 
integrity.
    Now, I understand that is one example of the type of 
tolerance of dissent that you have alluded to, and this is one 
of particular concern to this committee, given that this 
subject is addressed in the bill, which we applaud.
    For example, in this Presidential memo that went to every 
agency head, the President directed that each agency shall 
adopt additional procedures, including any whistleblower 
protections as are necessary, to ensure the integrity of 
scientific and technological information and processes on which 
the agency relies in its decisionmaking.
    So I would put that forward as one example of direct 
communication from the President to agency heads in order to 
tolerate dissent and to make sure we all get to the right 
answer in the right way.
    Chairman Towns. What do you feel that is not here that 
should be here?
    Mr. De. With respect to the bill, I think certainly we 
applaud a lot of what is in the bill. I think some suggestions 
we have concern how to more carefully tailor some of the 
amendments to--for example, the definition of ``protective 
disclosure'' or how national security whistleblowers are dealt 
with.
    And so I think our proposal--one thing that we think isn't 
here would be the suggestion for a new executive agency board 
that sits outside of individual agencies. We think that is 
something that could contribute to the goals of the legislation 
in a way that accommodates both the executive branch concerns 
and the congressional concerns. Such a new board would be able 
to deal with several issues that this committee has identified 
as issues of concern, whether it is retaliation for security 
clearance revocations, whether it is predisclosure from 
executive branch employees to congressional--relevant 
congressional Members of national security matters, or whether 
it had to do with retaliation claims generally about national 
security whistleblowers.
    So I think some sort of executive branch entity outside of 
individual agencies would be something that would contribute to 
the goals of this legislation.
    Chairman Towns. Thank you.
    In the national security and intelligence area, I think we 
agree, a good outcome would be to set up a system that 
encourages employees to work within the system rather than 
disclosing sensitive information to the newspapers. We want 
employees to feel comfortable raising problems right away so 
that any serious misconduct is addressed before it becomes a 
major problem or a scandal.
    Do you believe that the process you outlined in your 
testimony will encourage employees to disclose information 
internally rather than to the New York Times, Washington Post 
and, of course, Amsterdam News? And what other steps do you 
think are necessary to restore employees' confidence in the 
system?
    Mr. De. We very much agree that the most effective, 
efficient way to address the wrongdoing that we all want to 
address is to ensure that whistleblowers do so in a way that 
allows us to fix these problems at the earliest possible stage. 
Some of the suggested fixes in the bill, as well as some of the 
ideas we have put forward, are certainly meant to address that 
concern, and we appreciate that philosophy that is clearly 
reflected in the bill itself already.
    I think one example of how we believe our proposal could 
certainly further that end is, if national security 
whistleblowers do feel confident that there is a means for 
redress for concerns over retaliation, if it is addressed, for 
example, by the new extra-agency panel that we propose, that 
very comfort and confidence, that there is a means for them for 
redress, in and of itself, will promote the proper disclosure 
of waste, fraud, and abuse in a way that we can actually 
address it and fix it more quickly in the process, rather than 
making such whistleblowers feel that their only option is to go 
outside the system to the press, which doesn't help us fix the 
problem as easily as we could otherwise, and puts everybody in 
jeopardy potentially.
    Chairman Towns. Let me ask you this one, and then I am 
going to yield to my colleague from Massachusetts.
    Could you comment on the provisions in the legislation that 
strengthen protection for employees of Federal contractors? 
This is similar to the protections we passed for recipients of 
the stimulus funds, which the President signed and that you 
highlighted in your testimony.
    Could you comment on that provision?
    Mr. De. Yes, sir.
    As you know and as you mentioned, the President was pleased 
to sign the Recovery Act, which included a provision that 
extended whistleblower protection to recipients of stimulus 
funds. We are pleased that this bill extends protection 
beyond--to Federal contractors, beyond just recipients of 
Federal stimulus funds, but to all Federal contractors. So we 
would support extending protection to Federal contractors 
generally.
    Chairman Towns. I yield to the gentleman from Massachusetts 
for 5 minutes.
    Mr. Tierney. Thank you, Mr. Chairman.
    Mr. De, thank you for being here today.
    With respect to that part of the bill that deals with 
whistleblower disclosures in the FBI, do you have a comment to 
make about the proposal by some that section be amended to 
explicitly state that disclosures made through the normal chain 
of command at the FBI do not lose their protective status?
    Mr. De. As a general matter, we certainly believe that 
normal chain of command disclosures should, in fact, be 
protected. We want to encourage employees to do what their 
first instinct normally is to do, which is to go to your boss 
and say, I think that this is a problem.
    And so we certainly agree that applies throughout the 
government, and we would like to make sure that particular 
language in the bill is crafted in such a way to ensure that it 
achieves that goal, but also doesn't unnecessarily chill 
Federal managers from taking whatever appropriate disciplinary 
actions there may be in the normal course of employment.
    Mr. Tierney. Thank you.
    I yield back, Mr. Chairman.
    Chairman Towns. Thank you very much.
    You know, if you were able to score on 1 to 10 in terms of 
this legislation, what number would you give it?
    Mr. De. Well, I am not a numbers person, so I suppose that 
is the first answer I would have. I think we are----
    Chairman Towns. We will leave the record open for you to 
get a number.
    Mr. De. I would say this. We are very, very pleased that 
the committee and Congress are paying attention to this issue. 
And the President and this administration want to see a bill, 
so we are very engaged to make sure that this bill happens to 
the extent Congress can make it happen this year.
    Chairman Towns. Thank you very much. And thank you for your 
testimony. Thank you.
    Panel No. 2. We now turn to our second panel.
    Our second panel will have three witnesses made up of 
current and former employees of the Federal Government. These 
whistleblowers each followed their conscience in disclosing 
evidence of wrongdoing or threats of public safety. They have 
taken different paths to arrive here today, and we have asked 
them to share their experiences with the committee.
    We will first hear from Ms. Bunnatine Greenhouse, better 
known as Bunny, who is a top procurement executive with the 
Army Corps of Engineers.
    Our next witness, Franz Gayl, is employed as a civilian 
science and technology advisor with the U.S. Marine Corps.
    Our third witness, Teresa Chambers, was the chief of the 
U.S. Park Police and was removed after disclosing her concerns 
about the safety of the National Parks.
    I look forward to hearing each of your testimonies. And, as 
I said earlier, it is committee policy that all witnesses are 
sworn in. So if you would stand and raise your right hands.
    [Witnesses sworn.]
    Chairman Towns. Let the record reflect that the witnesses 
answered in the affirmative.
    As with the other panel, what we would like for you to do 
is to talk for 5 minutes in terms of--and then, of course, 
allow us an opportunity to raise questions with you.
    So why don't we start with you, Ms. Greenhouse, and come 
right down the line.
    Thank you all for being here.

   STATEMENTS OF BUNNATINE H. GREENHOUSE, FORMER PROCUREMENT 
 EXECUTIVE AND PRINCIPAL ASSISTANT RESPONSIBLE FOR CONTRACTING 
 [PARC], U.S. ARMY CORPS OF ENGINEERS; FRANZ GAYL, SCIENCE AND 
TECHNOLOGY ADVISOR TO THE DEPUTY COMMANDANT FOR PLANS, POLICIES 
   AND OPERATIONS/DEPUTY BRANCH HEAD, U.S. MARINE CORPS; AND 
        TERESA CHAMBERS, FORMER CHIEF, U.S. PARK POLICE

              STATEMENT OF BUNNATINE H. GREENHOUSE

    Ms. Greenhouse. Chairman Towns--I believe Ranking Member 
Issa is not here now----
    Chairman Towns. He will be here.
    Ms. Greenhouse [continuing]. And honorable members of the 
committee, I want to first thank you for holding this hearing. 
I am required to state that I appear in my personal capacity.
    In 1997, I was sworn in as the U.S. Army Corps of Engineers 
Procurement Executive and Principal Assistant Responsible for 
Contracting. I was selected for this position following a 
competitive selection process where I was judged most 
qualified. I am proud to have been the first black female to 
become a member of the Corps' senior acquisition service--
executive service.
    I soon realized that the Corps' contracting practices were 
dominated by cozy and clubby contracting relationships. Simply 
stated, improper contracting practices were the norm rather 
than the exception. I fought to bring accountability and 
fairness to the Corps' contracting mission, which brought about 
hostility and was blatantly tied to my race and gender.
    During the ramp-up to the Iraq war, the Army Corps was 
named as the executive agent for a contract effort known as 
Restore Iraqi Oil [RIO]. RIO was a $7 billion sole-source cost-
plus contract awarded to Halliburton subsidiary Kellogg Brown & 
Root without competition.
    A decision at the highest levels was made to exclude me as 
much as possible from the RIO contracting effort. I was not 
told that the Corps had been selected as the executive agent 
for the RIO contract, and I was kept in the dark for as long as 
possible. But I could not be completely circumvented, because 
eventually the final justification and approval for the RIO 
contract had to be provided--had to be provided to me for 
signature.
    It was not until the invasion of Iraq and that was imminent 
that the curtain was finally lifted, giving me a front row seat 
to the worst contract abuse I witnessed during the course of my 
23-year professional contracting career. Although the Corps had 
been named the executive agent, in reality that function was 
controlled out of the Office of the Secretary of Defense.
    I raised concerns directly to the Secretary of Defense's 
representative and to the senior contracting officials from the 
Department of Army and to my command, outlining the selection 
of KBR was improper and unlawful, that the process was plagued 
by conflict of interests, and the scope and the duration of the 
compelling emergency contract was unconscionable. My concerns 
were ignored.
    Because the invasion of Iraq was imminent and there was 
little that I could do, after some soul-searching, I was 
compelled to handwrite directly onto the original copy of the 
contracting documentation a notation documenting my most 
pressing concern over the unprecedented duration of the 
contract. My notation on the contract documents did not sit 
well with my superiors, and retaliation was sure to follow.
    In October 2004, I was called into the commander's office 
and given written notice that I was to be removed from the 
senior executive service and from my position. I was told that 
I could avoid the embarrassment of demotion and could retire 
with grace.
    I did nothing wrong. I was not going to retire, and I could 
no longer remain silent. I turned to Michael Kohn, a cofounder 
of the National Whistleblower Center, for help. With his 
assistance, I was able to bring my concerns to the then Acting 
Secretary of the Army and key Members of Congress.
    A media storm followed. The Acting Secretary of the Army 
did the right thing by acknowledging the seriousness of my 
concerns. He ordered a halt to my demotion and removal until my 
concerns were reviewed by the Department of Defense Office of 
Inspector General [DOD IG]. But there was no visible action to 
investigate my concerns. As far as I can tell, the DOD IG never 
conducted an investigation.
    The status quo ended after I agreed to testify before a 
congressional committee regarding improper contracting. I was 
approached by the U.S. Senate Democratic Policy Committee and 
asked to provide testimony about my concerns. I felt obligated 
to appear, particularly because my concerns were not being 
looked into as had been promised by the Acting Secretary of the 
Army.
    Word that I was going to appear reached the Corps, which 
prompted a visit from the Army Corps' Acting General Counsel. 
He let it be known that it would not be in my best interest to 
voluntarily appear before the committee. I ignored the message, 
and that was delivered, and testified on June 27, 2005.
    I anticipated swift retaliation for doing so, and I didn't 
have to wait long. On August 25, 2005, I was removed from the 
SES and stripped of all contracting responsibilities.
    Since then, my Top Secret clearance was withdrawn. I 
continually receive inappropriately downgraded performance 
reviews, others are allowed to take credit for my work, and I 
am kept away from my career field of contracting. I was even 
denied recognition for having 25 years of Federal service at 
the annual USACE award ceremony that was afforded to other 
USACE-eligible employees.
    I am not an expert in the law, but I am well versed in how 
poorly it works when it comes to Federal sector whistleblower 
protection. The current reality is that the Federal 
Whistleblower Protection Act offers no protection. How poorly 
it works is perhaps best exemplified by the advice I received 
from the National Whistleblowers Center, a not-for-profit 
organization devoted to helping whistleblowers. When I 
explained what was happening to me, I was told that filing a 
claim under the Whistleblower Protection Act would do more harm 
than good.
    I essentially received the same advice from my former 
commander, Lieutenant General Carl Strock, who was responsible 
for my removal and demotion. When my whistleblower concerns 
were made public, he announced in my presence during his weekly 
staff meeting of his senior staff that the Corps had a 
whistleblower, but that there was no need for concern because 
the system would take care of itself.
    I am the poster child of what Federal employees can expect 
if they have the courage to blow the whistle on waste, fraud, 
or abuse: a lost career, with the inability to wage a 
meaningful legal challenge.
    Federal employees deserve more than that. Thank you for 
listening.
    Chairman Towns. Thank you very much, Ms. Greenhouse, for 
your testimony.
    [The prepared statement of Ms. Greenhouse follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Chairman Towns. Mr. Gayl.

                    STATEMENT OF FRANZ GAYL

    Mr. Gayl. Mr. Chairman, thank you for inviting my testimony 
today. I just wanted to say that I am testifying in my personal 
capacity and not in my official functions.
    My name is Franz Gayl. I enlisted in the Marine Corps in 
1974 and retired as a major in 2002. Following my retirement, I 
was hired back by the Marine Corps as a GS-15 civil servant.
    I had enjoyed an unblemished record as a science advisor 
and deputy branch head until I blew the whistle on the Marine 
Corps' support establishment in Quantico in early 22007. I am 
testifying because I want my lessons to make a difference as 
you consider this new legislation.
    In 2006, I volunteered to deploy to Iraq to assist I MEF 
Forces with equipment deficiencies facing Marines. In Iraq, I 
witnessed the tangible costs in lives lost and serious injuries 
incurred due to gross mismanagement of requirements at 
Quantico. I perceived that the Marine Corps Combat Development 
Command at Quantico remained willfully blind to the 
consequences of equipment delays.
    The most tragic consequences resulted from delays in 
fielding the Mine Resistant Ambush Protected vehicles. I 
contend that officials knowingly delayed or refused the 
provision of urgently requested capabilities like MRAP whenever 
requests competed against preexisting Quantico priorities for 
finite resources.
    Upon returning, I was committed to ensuring accountability 
for the preventible loss of life and to achieve lasting 
organizational improvements. However, after my supervisors 
silenced my attempts to bring the issues to the attention of 
the Office of the Secretary of Defense, I reached out to the 
offices of then-Senator Biden and Senator Bond.
    For the OSD disclosures, I received a formal counseling and 
rewritten job description. Then I received a formal letter of 
reprimand for a well-received e-mail to a senior joint 
commander outside of my chain of command. Finally, I received a 
notice of proposed suspension for meeting with congressional 
staffers. I submitted three complaints to the Office of Special 
Counsel, each being rejected on different grounds.
    The Government Accountability Project assisted me in 
getting OSC to consider a fourth submission and I was also 
invited for an interview, but I have not heard from OSC in over 
a year. GAP and concerned Members of Congress have been my only 
advocates.
    Then, in 2007, I was directed to conduct a study aimed at 
modernizing combat development processes. I completed studies 
on MRAP, laser dazzler, and other denied capabilities. When 
staffers asked for the unclassified case studies, I provided 
them. This initiated DOD IG audits of MRAP and laser dazzler 
urgent needs. The MRAP audit found that the Marine Corps was 
aware of the threat posed by improvised explosive devices and 
of the availability of MRAP-type vehicles years before 
insurgent actions began in Iraq yet did not acquire them. Even 
after I MEF Forward urgently requested MRAPs to mitigate 
casualties, MCCDC did not respond.
    The audit did not refute my case study findings that the 
MRAP requirement was grossly mismanaged and that inaction by 
MCCDC cost many Marines their lives unnecessarily. Other 
independent audits further confirmed my disclosed concerns. The 
dazzler audit is ongoing.
    More reprisals have followed from my case study disclosure 
to Congress, including disapproval of two separate requests to 
attend school, disapproval to participate in a 2-year 
congressional fellowship program, and a ``2'' performance 
rating for 2008 under the National Security Personnel System. A 
``2'' places me in the bottom 3 percent of the 160 civilians 
against whom I was compared. I am also undergoing a periodic 
security clearance reinvestigation. I have no reason to believe 
that my supervisors portrayed me as trustworthy.
    Finally, I have been issued a performance improvement 
program, giving me 26 workdays to complete a lengthy list of 
self-improvement steps. It appears clear to me that the latest 
reprisal will probably lead to my termination. My current 
situation is a far cry from the I MEF Forward commanding 
general's recommendation to have me considered for the senior 
executive service ranks when I returned from Iraq.
    In conclusion, the Marine Corps is my life, and I owe back 
a great debt. That is why I continue to hang in there. I joined 
the Marine Corps following my 17th birthday in 1974, and the 
Corps has given me my proudest identity and a purpose for my 
life. I feel very fortunate indeed. But it is the Marine Corps 
I honor, not the Quantico and Beltway corporate Marine Corps, a 
culture that has acted on incentives and exhibited priorities 
that were and are often divorced from those of Marines in 
harm's way.
    Officials must be held accountable for their past willful 
blindness to known threats and the general officers who, one, 
failed to supervise those officials then, or two, continue to 
defend their past actions today, must be held accountable as 
well. If those generals and officials are not held accountable 
for past tragedies before public attention wanes, the same 
officials will follow parochial priorities with renewed 
confidence in the future, and Marines will again pay the price 
in the field.
    As I stated to my supervisor during a counseling session in 
2007, I intend to successfully achieve a degree of 
accountability and concrete change at Quantico, or I will be 
fired in the process of trying. While I don't want to be fired, 
that may be the cost of me doing my duty as a Marine and a 
civil servant.
    The legislation you are discussing today will probably come 
too late for me. However, I will feel good if I manage to help 
protect DOD Federal employees in the future from the sort of 
treatment I have been experiencing over the past 2 years. Thank 
you, sir.
    Chairman Towns. Thank you very much.
    [The prepared statement of Mr. Gayl follows:]

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    Chairman Towns. Ms. Chambers.

                  STATEMENT OF TERESA CHAMBERS

    Ms. Chambers. Thank you, Mr. Chairman and members. Thank 
you for this long-awaited opportunity.
    My name is Teresa Chambers, and I am a 33-year career law 
enforcement professional, and I had been the chief of the U.S. 
Park Police, responsible for protecting our Nation's most 
notable parks, monuments, and parkways.
    Being selected for this position following a nationwide 
search was a tremendous honor, affording me the opportunity to 
serve my country. For the past 5\1/2\ years, however, I have 
been trapped in a bizarre, utterly broken system. Years of 
litigation have yet to resolve a very simple question: Is 
telling the truth a firing offense in Federal service?
    In November 2003, a Washington Post reporter contacted me 
for an official agency response regarding information the union 
had supplied him, including internal documents showing there 
were not enough officers to cover assignments following the 
attacks of 9/11. On December 2nd, the Post published the 
article.
    After reading it, I thought it would be well received 
because thorny issues had been handled deftly. This was not the 
case. Three days later, without explanation and with three 
armed special agents at his side, then National Park Service 
Deputy Director Donald Murphy ordered me to surrender my gun, 
badge, and identification.
    I was placed on administrative leave and ordered not to 
speak further with the media. Two of the agents escorted me 
back to my office to quickly collect personal effects. Then I 
was walked out into the street. Standing there at the curb in 
full uniform holding a cardboard box of things, I was stunned. 
Little did I know that a long, strange odyssey had just begun.
    One week later, I was summoned to a meeting with Murphy and 
his senior Department of Interior attorney. They offered to 
forgo any punishment and fully restore me as chief if I would 
appear at a press conference to deny that there had been any 
sort of disagreement. A string was attached: A political 
appointee would vet all my communications with Congress and the 
media. I refused to participate in what would result in 
misleading Congress and the public.
    Days later, I was charged administratively with improperly 
disclosing law enforcement sensitive information to the 
Washington Post. For good measure, Interior tacked on five 
administrative charges, none of which had been raised 
previously. The charges were not true, and I filed a detailed 
rebuttal.
    Convinced that these charges would not withstand factual or 
legal scrutiny, I lodged a complaint with the U.S. Office of 
Special Counsel. The investigation dragged on for 5 months, but 
came to no conclusion. At one point, OSC hosted a dispute 
resolution meeting, during which a Bush appointee suggested 
that Interior would pay me $300,000 to resign. When I told them 
I was not interested in money, those negotiations quickly 
ended.
    After more than 7 months, I filed directly with the Merit 
Systems Protection Board, and within a few hours of doing so, 
Interior announced its decision to fire me.
    The MSPB process has been a long, drawn-out nightmare. 
After the MSPB on a split vote rejecting my appeal, I went to 
the Federal Circuit. In a rarity, the Federal Circuit ruled for 
me and sent my case back to the MSPB, which this January ruled 
against me again. Now my case is back before the Federal 
Circuit yet a second time.
    My experience demonstrates that the system is broken and 
that Congress needs to adopt fundamental reform. First, the 
system must be fast and fair, fast in that there must be 
expeditious means to resolve cases and fair in that, if the 
case does not quickly resolve, it should be brought before a 
jury. Giving employees access to jury trials is the single 
biggest reform. Before juries, agencies will quickly learn that 
reprisal campaigns will backfire.
    Second, rules must be clear. Eliminate the legal thicket 
that shields retaliation. Above all, honesty in Federal service 
should be expected and protected.
    Third, look at underlying problems. The current system 
concentrates only on the personnel action, but completely 
ignores the underlying problem over which the civil servant 
risked his or her career.
    In 2003, I told Congress and top agency officials that the 
U.S. Park Police was dangerously understaffed. It is still 
understaffed and even more so today. The men and women 
patrolling the monuments, parks, and parkways are not getting 
the support they need to do a demanding but vital job; and 
because of this, both they and the public remain in danger.
    I am proud of my service with the U.S. Park Police, and I 
stand by the decisions I have made. My hope is that my 
experience will result in positive change for public servants 
who have the courage to speak the truth regardless of the 
consequences.
    Thank you for your time, sir.
    Chairman Towns. Thank you very much.
    [The prepared statement of Ms. Chambers follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    
    Chairman Towns. Let me thank all of you for your testimony, 
and let me thank you for your years of public service. It is an 
unfortunate truth that the difficulties you and others have 
encountered are the inspiration for this important legislation.
    Let me begin, I guess, with you, Ms. Greenhouse. You note 
in your testimony that your Top Secret clearance was removed 
after you blew the whistle.
    What justification did the Corps provide you for taking 
that kind of drastic action?
    Ms. Greenhouse. They were feeling that they were justified 
because they said that I no longer had performance objectives 
or duties that required their billet for a Top Secret 
clearance.
    I am quite capable even in the area where I have been 
placed in the Directorate of Civil Works to do a lot more jobs 
that would require a Top Secret clearance, but I am not placed 
in those jobs. And then they used that as their justification 
for saying that you are no longer doing jobs that are of the 
importance or where you will be involved with Top Secret types 
of material; therefore, your Top Secret clearance is now being 
terminated.
    Chairman Towns. In other words, they just made up 
something, basically, sort of.
    Ms. Greenhouse. When I am quite willing and ready to say I 
will take on any duties and I am capable. I have three master's 
degrees and one in engineering management, so I knew I could do 
the jobs. But why not give me the jobs so that I could maintain 
the Top Secret clearance and then be in a position to give more 
value to my Nation?
    Chairman Towns. Thank you.
    Ms. Chambers, could you please illustrate the type of 
safety concerns you believe that the National Parks are 
vulnerable to because of insufficient resources?
    Ms. Chambers. Sir, the most glaring example came last night 
as I attended the Law Enforcement Officers Memorial Candlelight 
Vigil. I buried a police officer from the U.S. Park Police. 
Part of the reason that he died is because there were not 
sufficient officers to protect an accident scene on the 
Baltimore-Washington Parkway.
    Everyone in the Nation in law enforcement was short after 
9/11, and we were no different. The difference was that while 
local agencies could apply for Federal benefits and increase 
their numbers of officers, we in the Park Police stayed 
stagnant. In fact, instead of increasing in numbers following 
9/11, our numbers fell.
    We gave great attention to our monuments and memorials, and 
even with that, it wasn't a sufficient amount of attention. It 
was, frankly, Mr. Chairman, window dressing. We had extra 
officers, but we weren't doing the real work behind the scenes 
that needed to be done. We also were pulling from our 
neighborhood parks and parkways, leaving them extremely short 
and understaffed.
    I had shared this information with folks in my chain of 
command and it fell on deaf ears. And it wasn't until the 
Washington Post had asked whether this information that the 
union had taken to them was factual that the hammer fell.
    Chairman Towns. Let me ask all three of you this question.
    People are saying that, look, workers are not going to 
believe you if you talk about protecting whistleblowers based 
on what they have seen down through the years, and they are 
just not--not going to happen.
    And, of course--let me ask all three of you; and this is 
something that Senator Grassley has for many years talked 
about: a ceremony in the Rose Garden for whistleblowers to 
demonstrate the value of the whistleblowers to public service. 
And, of course, if President Obama invited each of you to a 
ceremony in the Rose Garden, would you show up?
    Right down the line, starting with you, Ms. Greenhouse.
    Ms. Greenhouse. I am sorry? I missed it. The question 
again?
    Chairman Towns. The problem is that many workers do not 
feel that when it comes to protecting whistleblowers, the 
government--that the agencies are not serious about it. Well, 
Senator Grassley said that one way to do that would be to have 
a ceremony for all the whistleblowers in the Rose Garden.
    So I am saying to you, if President Obama invited you to 
the Rose Garden for a ceremony, would you show up?
    Ms. Greenhouse. I would be honored to.
    Mr. Gayl. I would be honored to as well.
    Ms. Chambers. I would be the first there, sir.
    Chairman Towns. I think we have to look at things like that 
to sort of point out how serious this legislation is.
    And so let me at this point yield to my colleague. First, I 
want to yield to the person that sponsored the legislation, and 
then I am going to go next to let you know that we are really 
serious about it.
    I want to yield to Congressman Van Hollen, and then of 
course I will recognize other Members as well. This is the 
sponsor of this legislation, Congressman Van Hollen.
    Mr. Van Hollen. Well, thank you, Mr. Chairman. And let me 
thank my colleague, Mr. Quigley, and again welcome him to the 
Congress as one of the newest Members. It is great to have him 
on this committee.
    I just want to come and thank all of you for your testimony 
today, but for also having stood up as whistleblowers and put 
yourselves on the line. And your stories are the reasons that 
we are moving forward so aggressively with this legislation. As 
you have heard, it has passed the House before, twice now.
    Our understanding from Members of the Senate is that this 
time they will engage in this. And we are going to take their 
statements at face value and in good faith, and we really hope 
that this time around we can move forward.
    I think you probably heard the testimony from the Obama 
administration earlier today, which was a real sea change from 
the statements that we have had from earlier administrations on 
this legislation. And so I think that things are lining up.
    We are very hopeful--we are confident that we will get it 
out of the House again. We are very hopeful we will then get it 
out of the Senate and to the President's desk. And as the 
administration witness said today, the President looks forward 
to signing legislation strengthening whistleblower protections.
    But we wouldn't be here today and we would not know of the 
flaws and problems with the existing system if it hadn't been 
for your courage in coming forward. And so, really, as the 
chairman suggested in his last question to you, this 
legislation is really dedicated to you and all the other 
whistleblowers out there who come forward to try and protect 
the taxpayer, protect our country. And it is time that we send 
a signal that kind of bravery and courage is rewarded and not 
punished.
    So thank you all for coming forward today.
    Thank you, Mr. Chairman.
    Chairman Towns. Thank you very much.
    I yield 5 minutes to Congressman Quigley from the great 
State of Illinois.
    Mr. Quigley. Thank you so much, Mr. Chairman. And thank you 
very much to the sponsor of this measure. It is a welcome sign 
here.
    And I want to thank everyone in this room for their 
efforts. I come from a town right now that is struggling with 
these issues, and it is important across the whole country.
    A wise man once said that illumination is the best 
disinfectant for government. And without transparency, without 
accountability, we simply can't know what is happening, and the 
public doesn't get the kind of government they deserve. 
Jefferson said, In a democracy we get the kind of government we 
deserve. Well, I would suggest that wouldn't be the case 
without efforts like yours.
    We can't drive past these buildings and know what is 
happening inside. As large as this government is, there is just 
absolutely no way we can know what is happening, and we cannot 
promote accountability without the courage of folks like you.
    So it is our role, in my mind, as a very young Member here, 
to foster that, your role, as much as possible and to help you 
in any way we can.
    And I thank the chairman, for his efforts, and I thank the 
sponsor, for being tenacious about this, and moving us in the 
right direction. And as a freshman, in my own small way, I will 
do everything I can.
    So, thank you so much for all you do and I look forward to 
moving this forward. Thank you.
    Chairman Towns. Thank you very much, Congressman Quigley.
    Let me ask you, Mr. Gayl--you know, an important part of 
this committee is to look at the effectiveness of the 
inspectors general. You have told us that the Department of 
Defense inspector general largely vindicated your concerns. 
Could you tell us what the Marine Corps has done to followup on 
any recommendations the IG made in its report?
    Mr. Gayl. Sir, I am not aware of any actions that were 
taken in response to the IG's audit.
    I do know there have been improvements made. There have 
been other audits, too, that have taken a look at the Marine 
Corps that have been very unfavorable with regard to the 
requirements process at Quantico. One of them was a naval audit 
service back as far as 2007.
    I do know they were very engaged at Quantico in improving 
the transparency of the requirements process and improving the 
responsiveness to warfighters as a result of that very negative 
report. But as far as any activities in response to the DOD 
IG's audit of the MRAP Urgent--UUNS process, I do not know of 
any specific actions the Marine Corps has taken.
    Chairman Towns. Let me thank all three of you again for 
your testimony. I would be delighted to yield.
    Mr. Van Hollen. First, I want to thank the chairman for 
taking this up as one of the first orders of business. I 
appreciate that very much.
    Again, thank you for your testimony.
    I also want to apologize. Because of those votes, I think 
all of our schedules got messed up, and I want to apologize to 
the witnesses on the next panel that, unfortunately, I am not 
going to be here. But I will be reading your testimony and 
appreciate your input.
    We have a great----
    Chairman Towns. Turn your mic on.
    Mr. Van Hollen. Thank you, Mr. Chairman.
    I was just saying to the next panel, I apologize. Because 
of the votes that messed up everyone's schedule, I am not going 
to be able to be here. But I will look at your testimony.
    Some of you have been before this panel before. We thank 
you for all your contributions to this effort. Thank you.
    And thank you, Mr. Chairman.
    Chairman Towns. Thank you very much.
    And let me also join by saying that we really thank you for 
your testimony. I do believe that what you have done today is 
going to make life better and make our government much stronger 
as a result of your activity. And I think it is going to also 
encourage people not to be afraid, if they see something wrong, 
to try and move forward and make it right.
    So I want to let you know you had a lot to do with this 
legislation moving forward. And, of course, we are going to try 
to make certain this time around that it goes all the way; and 
based on what they are saying in the administration, that if it 
hits his desk, he is going to sign it. So I want to let you 
know that we thank you for it.
    And we know that through that process of standing up, you 
encountered some pain and some suffering. But I think that the 
key to it is what you are doing in terms of paving the way for 
others and, at the same time, strengthening our government. 
That is what we want.
    Transparency is something that we need too in our 
government. The President of the United States--in every 
conversation I have had with him, he has indicated that he 
would like more transparency, and what you are doing is to help 
him to get it. Thank you so much for your testimony.
    Our final panel will have six witnesses made up of experts 
in the field of constitutional law, whistleblower law, and 
government accountability. Welcome.
    Louis Fisher is a special assistant to the Law Librarian of 
Congress at the Law Library of Congress and is an expert on 
constitutional law and separation of power issues.
    Professor Robert Turner from the University of Virginia is 
the associate director of the Law School's Center for National 
Security Law.
    Tom Devine is the legal director of the Government 
Accountability Project, which has been advocating for strong 
whistleblower protection for over 30 years.
    Angela Canterbury is the director of advocacy for Public 
Citizen, Congress Watch Division, which has been promoting 
government accountability for decades.
    Mike German is policy counsel on national security with the 
ACLU. Mr. German was an agent with the FBI and resigned over 
concerns about failed prosecution of domestic terrorist 
organizations.
    Finally, David Colapinto is the general counsel of the 
National Whistleblowers Center. Mr. Colapinto has developed 
expertise in litigating FBI employment cases.
    We have asked this panel to provide their views on specific 
provisions of the legislation and to provide us with 
suggestions for improving the bill.
    It is the longstanding policy that we swear in all of our 
witnesses. So if you would be kind enough to stand and raise 
your right hands.
    [Witnesses sworn.]
    Chairman Towns. Let the record reflect that all the 
witnesses answered in the affirmative.
    Why don't we just start with you, Mr. Fisher, and come 
right down the line.

   STATEMENTS OF LOUIS FISHER, SPECIAL ASSISTANT TO THE LAW 
 LIBRARIAN OF CONGRESS, THE LAW LIBRARY OF CONGRESS; ROBERT F. 
  TURNER, PROFESSOR, ASSOCIATE DIRECTOR, CENTER FOR NATIONAL 
  SECURITY LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW; THOMAS 
  DEVINE, LEGAL DIRECTOR, GOVERNMENT ACCOUNTABILITY PROJECT; 
   ANGELA CANTERBURY, DIRECTOR OF ADVOCACY, PUBLIC CITIZEN, 
   CONGRESS WATCH DIVISION; MICHAEL GERMAN, POLICY COUNSEL, 
 AMERICAN CIVIL LIBERTIES UNION; AND DAVID COLAPINTO, GENERAL 
                COUNSEL, NATIONAL WHISTLEBLOWERS

                   STATEMENT OF LOUIS FISHER

    Mr. Fisher. Mr. Chairman, thank you for inviting me. I 
wanted to underscore, Mr. Chairman, what you said in your 
opening remarks, the need of Members of Congress--in order for 
you to carry out your constitutional duties, you need access 
from the executive branch and access to information, domestic 
information, national security information; and not just 
information that the President or a Department head voluntarily 
gives to you. You need information from agencies, in the middle 
of an agency, at the bottom of an agency; otherwise, you cannot 
know and correct wrongdoing and illegality. So that is the 
basic point.
    I look at the statement today from the Justice Department. 
Although it doesn't get much into constitutional issues, I see 
in the statement some reflection of what the Justice Department 
has said in the past. And what the Justice Department has said 
in the past is that the President can determine what 
information you get, particularly in the national security 
area: He can withhold information so that you cannot fulfill 
your constitutional duties.
    What the Justice Department has said in the past, they 
relied I think in improper ways on two Supreme Court cases. And 
one is the Egan case of 1988. I would just call to your 
attention that the Egan case had nothing to do with 
congressional access to national security information--nothing 
to do. It was a dispute solely between--inside of the executive 
branch between the Navy and the Merit Systems Protection Board. 
So it had nothing to do with congressional access.
    It also was a purely statutory matter; that is, what did 
Congress intend in this area? It had nothing to do with any 
constitutional powers of the President, anything that the 
President has as commander in chief.
    So I think that case has been misread by the Justice 
Department, and I think that misunderstanding is implied in the 
statement today from the Justice Department.
    The Egan case was simply looking at Congress, what you 
intended. And you can control this area through statutory 
action; you don't have to leave that to some plenary power by 
the President.
    The second decision that is misread by the Justice 
Department and I think is implied in today's statement from the 
Justice Department is the Curtiss-Wright case of 1936, which 
people read as giving the President plenary, exclusive, 
independent, inherent power in national security to withhold 
information to you.
    I can only say that the Curtiss-Wright case had nothing to 
do with Presidential power in terms of any inherent power; it 
had only to do with congressional powers, to what you can 
delegate to the President. And yet, it has been misread ever 
since, and it is--I go into this in my statement for you, how 
that has been abused over the years.
    What people do is not look at the decision of the Supreme 
Court, but to look at pages and pages of dicta by Justice 
Sutherland. And I think anyone looking at the dicta will see 
that it misreads particularly the statement that John 
Marshall--when he was a Member of the House in 1800, he made 
the statement that the President is the sole organ in external 
affairs. That implies, the sole organ, that he can do 
everything and has some exclusive power.
    Anyone reading the speech today would see that what John 
Marshall meant was that once Congress has made policy by 
statute or by treaty, then the President is the sole organ in 
carrying it out. You know that. Of course, that is what the 
Constitution says. It is nothing new. But that has been 
corrupted and misused by the Justice Department.
    I also want to call attention that the Justice Department 
seems to imply that because they make a vague reference to 
President Washington--I assume they mean the Jay Treaty in 
1796. But the fact is that President Washington 4 years earlier 
in the Algerine Treaty not only gave all treaty documents to 
the Senate, but gave the same documents to the House. So it is 
not true that the House is out of the picture.
    The last point I want to make is that in the past, when the 
Justice Department testifies, it seems to imply that there are 
two steps for you to get national security information: One, 
you have to have clearance. But as an elected Member, you have 
clearance.
    The second step, you have to have a ``need to know.'' And 
if I read statements in the past about the Justice Department, 
it seems to say that the President or some executive official 
can say, You have clearance, but you have no need to know; 
therefore, you are not going to get the information.
    And I will just close by reading from the 1998 CIA 
whistleblower statute. One of the things that Congress said in 
law is this: ``Congress, as a co-equal branch of Government, is 
empowered by the Constitution to serve as a check on the 
executive branch; in that capacity, it has a need to know, of 
allegations of wrongdoing within the executive branch, 
including allegations of wrongdoing in the Intelligence 
Community.
    Thank you.
    Chairman Towns. Thank you very much for your testimony.
    [The prepared statement of Mr. Fisher follows:]

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    Chairman Towns. Mr. Turner.

                 STATEMENT OF ROBERT F. TURNER

    Mr. Turner. Thank you, Mr. Chairman and members of the 
committee. I am pleased and honored to be invited to share with 
you my views on H.R. 1507.
    I was just invited 2 days ago and was given a newspaper 
article about the bill, and so my remarks are focused entirely 
upon section 10, the National Security Whistleblowers Rights 
Provision. And I would ask permission both to submit my 
statement for the record and also to revise it to reflect the 
fact that the bill covers a great deal more than this, and I do 
not object--I do not take a position on the other provisions of 
the bill. That is not my area of expertise.
    Chairman Towns. Without objection, so ordered.
    Mr. Turner. As a matter of public policy, I think this is a 
truly horrible idea of passing a law authorizing low-level 
employees in national security agencies to at-will give 
classified information to Congress.
    But on policy grounds we all can differ, and that is 
something you can decide for yourselves. But I would 
respectfully submit there is a bigger problem with the 
legislation that mandates its rejection irrespective of 
personal policy preference.
    Each of you, before assuming office, took an oath to 
support the Constitution, the highest law in the Nation. And I 
believe this bill is flagrantly unconstitutional. I don't say 
that lightly.
    I first became interested in these issues in 1966, when I 
had the privilege of attending a lecture in this area by the 
great Quincy Wright. I spent much of my professional life in 
recent decades studying, writing, and teaching about these 
issues. I wrote a 1,700-page doctoral dissertation on the 
issues and have written several books in the area. I worked on 
the issue for 5 years as a Senate staff member, later in the 
Pentagon, the White House, and the State Department, where I 
was the Acting Assistant Secretary For Legislative Affairs in 
1984-85. I spent three terms as chairman of the American Bar 
Association's Standing Committee on Law and National Security. 
And, as you noted, in 1981, I cofounded the Nation's first 
think tank in this area, the Center for National Security Law.
    My prepared statement, which was done very quickly but is 
about 20 single-spaced pages, includes more than 50 citations 
to the writings of George Washington, Thomas Jefferson, James 
Madison, Benjamin Franklin, John Jay, John Marshall, and 
others. It cites early legislation from the First Congress and 
judicial Presidents dating back to Marbury v. Madison in 1803, 
which I have to admit was dicta as well, but is nevertheless 
considered a fairly important case.
    The clear message is that the Founding Fathers 
intentionally excluded Congress from having access to sensitive 
military, diplomatic, or intelligence secrets without the 
consent of the President.
    In 1776, Ben Franklin and the rest of the Committee of 
Secret Correspondents of the Continental Congress unanimously 
agreed they could not share news of covert French assistance to 
the American Revolution because, ``We find, by fatal 
experience, that Congress consists of too many Members to keep 
secrets.''
    By far the most important document in helping the American 
people understand the Constitution were the Federalist Papers. 
The official journal of the convention and Madison's lengthy 
notes were not published for decades. In Federalist No. 64, 
John Jay explained that ``Important foreign intelligence 
sources would not be willing to confide their information to 
the Senate or Congress, but they would be willing to confide in 
the secrecy of the President''; and thus, he explained, that 
was why the Constitution had left, ``the business of 
intelligence,'' to be managed solely by the President, ``as 
prudence might suggest.''
    When Congress appropriated funds for foreign affairs and 
intelligence, year after year it asked the President to account 
specifically only for those expenditures from this fund as, 
``in his judgment may be made public.''
    In 1880, the legendary Henry Clay, Speaker of the House, 
declared that it would be improper for Congress to inquire into 
how the President spent money from his Secret Service account. 
Others echoed the point. No one voiced disagreement.
    My prepared statement discusses a number of Supreme Court 
cases recognizing this power. The agreement of all three 
branches on this issue was so strong that, in 1957, the great 
Princeton constitutional scholar, Professor Edwin Corwin, who 
was the principal author of the massive congressional document 
on the Constitution annotated document, said, ``So far as 
practice and weight of opinion can settle the meaning of the 
Constitution, it is today established that the President is 
final judge of what information he shall entrust to the Senate 
as to our relations with other governments.''
    I think I am missing page 4, but I think probably my time 
is up. I have another 30 seconds.
    So these are very important issues. But your oath of office 
is also tremendously important. I hope you will look at my 
prepared testimony. Don't take my word for it. See the words of 
Jefferson and Madison.
    Jefferson in one memo to President Washington in 1790 
noted, ``Congress was not intended to know the secrets of the 
executive branch.''
    I think the executive branch proposal for setting up some 
sort of machinery within the executive branch so that people 
who believe they have a grievance can have a fair hearing, that 
is not a problem as long as this is subject to the President's 
control.
    But just as I don't believe that Congress can get involved 
in hearing ongoing cases before the Supreme Court and calling 
witnesses and then telling the Court how to decide them because 
that is a judicial function, I think it needs to be very 
careful in how far it goes in getting in the business of the 
executive branch for fear of usurping executive powers.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Turner follows:]

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    Chairman Towns. Mr. Devine.

                   STATEMENT OF THOMAS DEVINE

    Mr. Devine. Thank you. It's an honor to be here with my 
colleagues from the Make It Safe Coalition, a nonpartisan, 
transideological, good-government network whose mission is 
solidarity with whistleblowers. We're part of a growing 
movement. About 5 years ago, there used to be 20 groups that 
would join the sign-on letters for the Whistleblower Protection 
Act; 3 years ago it was 50; last year it was 112; last week it 
was 280. This morning, it's 292.
    We're all committed to the pledge that President Obama 
campaigned on: Best practice, free speech whistleblower rights 
for all employees paid by the taxpayers, enforced by full 
access to court.
    And we want to offer thanks to the Obama administration. 
This is the first time in 30 years working on this issue that 
the government has asked for our views before the executive 
made its decision. That is very refreshing, and we appreciate 
it. But we won't be settling for less than justice as the 
outcome as much as we're enjoying the process.
    Mr. Chairman, this is the fourth time that Congress is 
trying to pass a law that was enacted unanimously the first 
three times. Very curious situation. What went wrong? Even for 
those who are covered, the Achilles heel is no mystery. From 
the beginning, it's been due process. From the start, the 
problem has been the administrative board, which is a 
whistleblower's only chance for a so-called day in court.
    The Whistleblowers Protection Act was passed in 1989 
because only four whistleblowers had won decisions on the 
merits in the 1980's. Well, guess what. It's deja vu all over 
again. We've only had three cases where they've won since the 
millennium, and only one under the current Chair Neil McPhie. 
In 30 years, there has never been a whistleblower who won a 
high-stakes--a case involving high-stakes whistleblowing with 
national consequences. Never.
    Among all of the lawyers that I know, the National Capital 
Region--where the most significant jobs are--since 1979, a 
whistleblower has never won any case, significant or petty. The 
public is the ultimate loser.
    Whistleblowers at the FAA tried to challenge the failure to 
inspect Southwest Airlines, and they were fired. What happened? 
Paralysis last summer in the airports.
    A whistleblower at the VA was challenging breakdown in 
patient security. He was fired. The Board said, well, he 
doesn't have whistleblower rights because he was challenging 
mere negligence. Tell that to the millions of patients whose 
confidential records were lost last year.
    There are very serious consequences, and the causes are no 
mystery either. The administrative judges have no judicial 
independence. They're not structured or having the resources to 
hear complex national cases. This policy is so engrained, their 
performance appraisals get lowered if they spend more than 120 
days working on a case. They compensate by trivializing or 
avoiding the issues.
    Something that, in the Senate Judiciary Committee, is a 
controversy over multimillion-dollar ghost procurement becomes 
at the Merit Systems Protection Board whether someone was fired 
for blowing the whistle on drunken office Christmas parties.
    Cases involving national consequences are delayed from 3 to 
11 years, unlike the normal case of the Board, if there ever is 
a hearing. It is very clear: A bush-league forum will not 
provide justice for those challenging major league government 
breakdowns. My written testimony has many examples of this 
phenomenon.
    I would like to spend the rest of my time answering the 
objections raised by people in the bureaucracy that the 
administration is trying to deal with.
    The main objection that we have to this process is a 
question: Why is it that the only problem we have with 
whistleblowers having access to juries involves Federal 
employees challenging Federal breakdowns? There are 14 
precedents where whistleblowers have jury trials, five laws 
passed in the last Congress. Federal employees are the only 
ones in the labor force without normal access to jury trials to 
enforce their rights. This is completely unacceptable.
    We've been told that if they have normal rights, it will be 
flooding the courts. Based on extrapolating from the 
precedents, there will be about 1/30th new case per year for 
each judge to contend with.
    We've been told it would be paralyzing. Managers would be 
intimidated by these new rights. They'll be afraid to impose 
accountability. Look at the facts. It flunks the reality test. 
Before the Whistleblower Protection Act was first passed, 175 
performance or misconduct-based actions in the prior 3 years; 3 
years after, 174. D.C. passed a Jury Trial Whistleblower 
Protection Act. The 5 years before it was passed, 220 
accountability actions by managers; the 5 years after, 220.
    It is time for the President, for any President, and for 
Congress to stop listening when bureaucratic managers cry wolf.
    Mr. Chairman, it's not too late to turn on the lights in 
the bureaucracy. We don't have time for further delay. This law 
needs to be passed before stimulus spending gets fully 
underway. We hope Congress will act quickly.
    Chairman Towns. Thank you very much for your testimony.
    [The prepared statement of Mr. Devine follows:]

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                 STATEMENT OF ANGELA CANTERBURY

    Ms. Canterbury. Thank you, Chairman Towns and members of 
the committee, for the opportunity to testify in support of 
H.R. 1507, the Whistleblower Protection Enhancement Act of 
2009. I'm Angela Canterbury, advocacy director for Public 
Citizen, Congress Watch Division.
    As our country faces challenges of historic proportions, 
one reform could save billions of taxpayer dollars and fulfill 
the imperative for more transparency and accountability: 
authentic whistleblower protections for all employees and 
contractors. Whether the issue is stimulus spending, fraud at a 
Wall Street firm, prescription drug safety, environmental 
protection or national defense, Federal workers must be 
empowered to safeguard the public trust. But as we've heard 
today, that is unfortunately not the case. A pervasive culture 
of secrecy in the Federal Government is fostered by the ease 
with which repression and retaliation can be meted out to any 
employee who dares to point out wrongdoing.
    In 2007, the nonpartisan Ethics Resource Center found that 
more than half of the Federal work force observes misconduct on 
the job, but only one-quarter reported wrongdoing because the 
others feared retaliation. More than 1 out of 10 who did report 
experienced retaliation. Not only is it a national disgrace, 
but speaking out about wrongdoing is still a risky endeavor. 
It's also unsustainable.
    As the stakes for public programs and funds have rarely 
been higher, whistleblower protections are good government and 
good business. Under the False Claims Act, whistleblower 
disclosures now account for the majority of fraud recoveries 
from dishonest contracts, $1.45 of the $2 billion recovered in 
2007 alone.
    Since the Whistleblower Protection Act was last reaffirmed, 
Congress has passed eight Federal laws, all of which provide 
private-sector employees with better protections than those of 
Federal employees.
    Our current system for protecting Federal whistleblowers is 
badly broken and outmoded, not all public employees are 
covered, and those who are face a flawed and politicized 
administrative process. They lack normal access to court. The 
only court authorized to hear the claims of retaliation, the 
U.S. Court of Appeals for the Federal Circuit, has a record of 
ruling against whistleblowers and eroding the law.
    H.R. 1507 would go a long way to restore and modernize the 
Whistleblower Protection Act, but it does not go too far. It 
does not propose sweeping change, but rather is an essential 
update to the policy to ensure functional rights for all 
Federal employees and contractors. It closes loopholes created 
by bad court decisions and improves due process rights; extends 
necessary coverage to contractors, Transportation Security 
Administration workers and national security workers, allowing 
for a review procedure sensitive to national security concerns; 
and provides specific protections to Federal scientists.
    Perhaps the most significant update is the addition of the 
access to jury trials and more judicial review, granting the 
same safety net for Federal workers that Congress has already 
granted to millions of private-sector employees. A trial by 
jury, though only likely to be used by a small minority, is 
essential to ensuring the law will be effective.
    Today I offer one suggestion for improving the bill: 
ensuring whistleblowers aren't forced into arbitration. This 
legislation rightly attempts to nullify forced arbitration for 
contract employees; however, on April 1st, the Supreme Court 
held in 14 Penn Plaza v. Pyett that employment discrimination 
claims brought by union employees can be subject to 
arbitration, and its holding may extend to whistleblower claims 
as well. This committee can easily remedy this by adding simple 
language to the bill.
    Like our hard-won civil rights laws, H.R. 1507 serves the 
public's interest by skillfully achieving the essential but 
delicate balance between the rights of employees and the 
effective management of the Federal work force. Public Citizen 
strongly endorse swift passage and enactment of H.R. 1507, and 
we are not alone. This legislation enjoys tremendous widespread 
support from the American people demonstrated not only by the 
broad array of supporting organizations, but also by 
editorializing of newspapers across the country and by 
bipartisan support in the House of Representatives, which has 
already passed this legislation twice.
    The impressive collection of transpartisan, 
transideological groups supporting the bill includes more than 
292 and is led by a core group of committed legislative 
advocates. Together we've called upon President Obama to 
fulfill his campaign promise and support passage of the bill.
    It is extremely encouraging to hear so much commonality 
between the administration's testimony today and our vision for 
credible protections. No President has ever been more 
supportive of true whistleblower reform. However, there are 
still areas where more discussion is needed to ensure agreement 
on an effective policy to achieve the ultimate goal of true 
accountability and transparency that we share. Public Citizen 
and our partners stand firmly behind H.R. 1507 and completion 
of this marathon legislative effort, and we look forward to 
working with you, the Senate and the President to finally 
restore and modernize the Whistleblower Protection Act.
    Thank you.
    Chairman Towns. Thank you very much, Ms. Canterbury.
    [The prepared statement of Ms. Canterbury follows:]

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    Chairman Towns. Mr. German.

                  STATEMENT OF MICHAEL GERMAN

    Mr. German. Thank you for inviting me to testify in support 
of H.R. 1507, the Whistleblower Protection Enhancement Act of 
2009. I represent the American Civil Liberties Union, a 
nonpartisan organization dedicated to defending the 
Constitution.
    The ACLU vigorously supports meaningful legal protections 
for all whistleblowers, and particularly for employees and 
contractors within the Law Enforcement and Intelligence 
Communities where abuse and misconduct can have the most direct 
consequences to our liberty and our security.
    In the weeks leading up to the September 11, 2001, 
terrorist attacks, FBI officials denied a New York agent's 
request to start looking for a known al Qaeda operative who had 
entered the United States in what the 9/11 Commission would 
later call ``a clear misunderstanding of the law.'' The agent 
sent an angry e-mail warning that, ``someday someone will 
die.''
    At the same time, an FBI supervisor in Minneapolis, stymied 
from pursuing a Foreign Intelligence Surveillance Court order 
to search Zacharias Moussaoui's computer by headquarter 
officials, who later admitted that they did not know the legal 
standard necessary to obtain one, shouted that he was trying to 
stop someone from taking a plane and crashing it into the World 
Trade Center. These agents clearly knew that gross 
mismanagement in the FBI's counterterrorism program posed a 
substantial threat to public safety, but neither formalized his 
complaint or pushed it up the chain of command. Perhaps, like 
one-third of those polled in a 1993 Merit Systems Protection 
Board study of the Federal work force who did not report 
illegal or wasteful activities they had seen on the job, they 
feared retaliation.
    After 9/11, President Bush called on the FBI, CIA and other 
intelligence agents to report any breakdowns in national 
security. And FBI Director Robert Mueller vowed to protect 
Bureau whistleblowers. But the record reflects that the few FBI 
employees who answered this call, myself, Sibel Edmonds, Jane 
Turner, Robert Wright, John Roberts and Bassem Youssef, were 
not protected.
    The myriad scandals involving the FBI, the CIA and the NSA, 
from spying on political activists to warrantless wiretapping 
to torture, more than demonstrate the need for more 
whistleblowers in the Intelligence Community. The reforms 
provided by H.R. 1507 will finally provide real protections to 
those brave law enforcement intelligence agents, agency 
employees and contractors who are willing to speak out when 
waste, fraud or abuse of authority endanger our security and 
violate the law.
    But as important as what this bill does for our national 
security whistleblowers is what it does not do to our national 
security. H.R. 1507 does not authorize Intelligence Community 
employees to leak classified information to the media or any 
other person who does not have the appropriate security 
clearances. In fact, by providing safe avenues for agency 
employees to report waste, fraud and abuse to the appropriate 
authorities and to Congress, there will be less of a need to 
anonymously leak information in order to have serious problems 
addressed.
    I would like to briefly offer two suggestions to strengthen 
the bill. First, for the reasons I described more thoroughly in 
my written statement, Congress should make explicit the 
disclosures made through the normal chain of command do not 
lose their protected status. We don't want these protections to 
set a trap for responsible agents who report problems through 
proper channels.
    Second, Congress must make clear that all Members of 
Congress have the right, by virtue of their election, to 
receive all lawful disclosures of information from CIA, FBI, 
NSA and other intelligence agency employees and contractors, 
and that those Federal employees and contractors who make 
lawful disclosures to any Member of Congress should be 
protected under the law.
    Congress needs access to information about mismanagement 
and misconduct within the Intelligence Community, both 
classified and unclassified, in order to perform its 
constitutional duty to check abuses of power and to serve their 
constituents' interests. Congress cannot perform effective 
oversight unless Federal employees and contractors are willing 
to tell the truth about what's happening within these agencies, 
and it is simply unfair to expect them to tell you the truth if 
they know it will cost them their jobs.
    Congress should pass H.R. 1507 and extend meaningful 
protection to the work force that is charged with protecting us 
by granting them full and independent due process rights when 
they blow the whistle during government investigations or 
refuse to violate the law, enforced through jury trials in 
Federal courts once administrative measures are exhausted, with 
full circuit court review.
    Thank you.
    Chairman Towns. Thank you very much for your testimony.
    [The prepared statement of Mr. German follows:]

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    Chairman Towns. Mr. Colapinto.

                  STATEMENT OF DAVID COLAPINTO

    Mr. Colapinto. Chairman Towns, members of the committee, 
thank you very much for inviting me to testify today on H.R. 
1507. My name is David Colapinto. I'm the general counsel of 
the National Whistleblowers Center, a nonprofit, nonpartisan 
organization in Washington, DC, that supports whistleblowers.
    To achieve whistleblower protection, Congress must enact 
reforms with full court access for Federal employees. We heard 
this morning a proposal by the Department of Justice witness 
for an extra-agency board, a new board to hear national 
security complaints without access to courts.
    Simply put, the district court access for national security 
and FBI employees is critical to achieve true reform. Whatever 
administrative scheme is devised by Congress, if it is without 
district court access, it is doomed to fail. That conclusion is 
based on a more than 30-year history that tells us what works 
and what does not.
    Laws that permit district court access, like H.R. 1507 and 
Title VII of the Civil Rights Act, work. Other laws, like the 
current Civil Service System that limit remedies through the 
administrative process, do not.
    For more than 18 years, FBI and intelligence agency 
employees have had the right to go to Federal court on claims 
of retaliation, go before a jury and seek compensatory damages 
under Title VII. That exists today. They can also go to 
district court under the Privacy Act and seek damages. They can 
go to district court for pre-enforcement injunctive relief to 
remedy constitutional violations.
    Under all of these laws, district court access for national 
security and FBI employees does not air details of national 
security programs. It just doesn't happen in our Federal 
courts. Likewise, H.R. 1507, as it is constructed, would pose 
no risk to national security under the district court access 
provisions.
    Where national security is related to a case, district 
courts have many protective measures available to prevent 
disclosure of classified information. For example, under Title 
VII national security agency cases, Federal courts have used 
pseudonyms and protective orders to protect national security 
information. Other protective measures are already in existence 
within the Rules of Civil Procedure and the Rules of Evidence, 
where Federal courts routinely use in-camera proceedings in 
order to protect the disclosure of classified information.
    More importantly, with respect to this legislation, there 
is nothing in H.R. 1507 that permits either an employee or the 
Federal court to reveal classified information. In fact, the 
bill is constructed to expressly authorize the agency to 
withhold classified information.
    This issue was studied back in the mid-1990's when it was 
requested--a GAO report was requested by the former Post Office 
and Civil Service Committee of the House. The report was issued 
in 1996, and it found that intelligence agencies already have 
in place numerous safeguards to protect classified information 
and national security interests in employees' Federal court 
cases and in jury trials in Title VII cases.
    The GAO concluded if Congress wants to provide CIA, NSA, 
and DIA employees with standard protections that most other 
Federal employees enjoy, it could do so without unduly 
compromising national security. And here's a copy of the 
report, which is publicly available on the Internet, and I urge 
anyone interested in this issue to read it, because the GAO 
conducted an audit and determined that information on sensitive 
intelligence operations can be converted into unclassified, 
publicly available documents.
    Intelligence agency adverse action files contain generally 
no national security information. The files reviewed by GAO at 
the DIA and the NSA, actually 98 percent of those files 
contained no such information. And that is the case file that 
is used to process the employee termination or discipline case.
    GAO reviewed case files in Federal courts and found 
declassified and redacted documents were capable of providing 
sufficient information to litigate the cases for both the 
agency and the employee.
    The conclusion, based on 30 years of history and 18 years 
under Title VII, is clear the administrative process alone 
won't work. Under the current system, I can tell you what 
happens. You heard from Ms. Greenhouse earlier, and it happens 
repeatedly by lawyers who represent Federal employees, when 
they come into the office, it has become standard for attorneys 
to have to tell Federal employees and advise them that filing 
the whistleblower claim is futile. Statistics bear that out: 95 
to 99 percent failure rate. To be honest with your clients, you 
have to tell them you have a 95 to 99 percent chance of losing 
your case. And nothing is more demoralizing than having to tell 
a client, particularly a dedicated Federal employee, 
particularly employees who work at national security or the FBI 
agencies, that remaining silent and not fighting retaliation is 
their best legal option. That won't change unless we have 
district court access for employees, including national 
security and FBI employees.
    And I thank you very much.
    Chairman Towns. Thank you very much, Mr. Colapinto.
    [The prepared statement of Mr. Colapinto follows:]

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    Chairman Towns. We've been joined by Congressman Cummings 
from Maryland as well.
    Mr. Fisher, do you see a significant difference in the 
position taken by the current administration in today's 
testimony and the historical position you outlined?
    Mr. Fisher. My concern is that if you look at Justice 
Department positions over the years, they will say the 
President has exclusive control over national security 
information. Even though you and other Members have clearance, 
you don't have a need to know, and they can block you.
    I see that, frankly, in what was said today, because when 
the Justice Department testified today after talking about 
President Washington, the Justice Department then refers to 
testimony back in 1998 with regard to congressional oversight. 
And this is a quote from today's testimony from the Justice 
Department: The Constitution ``does not permit Congress to 
authorize subordinate executive branch employees to bypass 
these orderly procedures for review and clearance by vesting 
them with a unilateral right to disclose classified information 
even to Members of Congress.''
    So if I read that correctly--and I think it's underscored 
by their idea of some sort of entity within the executive 
branch to review that. And I think what they are saying is that 
employees in the agency have no right to come here. They do 
under the 1998 CIA Whistleblower going to the Intelligence 
Committees, but other than that I think--I don't see the 
change.
    I think they decided today not to expressly talk about 
constitutional issues as they have in the past. But I don't see 
the change.
    Chairman Towns. Mr. Turner, do you have a comment on that?
    Mr. Turner. I think Dr. Fisher is right. I think they are 
doing what OLC and the executive branch has done throughout our 
history, and that is trying to uphold the Constitution, which, 
as it has always been interpreted, gives the President final 
decision on classified information. And I think they, as a 
matter of policy, they may well prefer this, but I think they 
have a duty to the Constitution just as members of this 
committee do.
    Chairman Towns. Thank you very much.
    Mr. Devine, you mentioned in your testimony the importance 
of jury trials for Federal employees, yet it is our 
understanding that very few of the employees will ever exercise 
that option because of the expense of bringing the case to 
Federal court. If that is the case, why is this right so 
important?
    Mr. Devine. Well, Mr. Chairman, first, it matters because 
this is very much a litmus test of the President's credibility 
on transparency issues. He pledges full access to court, and it 
will be difficult to take those commitment serious if he leaves 
Federal workers as the only ones without normal court access.
    But the main reason--and it far transcends the current 
administration--is the high-stakes cases that are the primary 
reason the Whistleblower Protection Act is passed, there is no 
chance for justice at the Merit Systems Protection Board. The 
ultimate point of the law, and why ours has the unanimous 
mandate, is not just the congressional commitment to be fair to 
government workers, it's the impact on the public. And the 
Board, the Merit Systems Protection Board for 30 years has 
rubber-stamped termination of anyone who challenged a 
significant government breakdown.
    I'll just give you some examples of the sophistry here. A 
Federal air marshal in a week with his whistleblowing blocked 
the Transportation Security Administration from removing air 
marshal coverage on cross-country flights during the hijacking 
alert. They basically they had blown their budget on 
contractors, and they wanted to get back to even by canceling 
the air marshals on these flights during an alert. The 
whistleblower stopped them. He was fired for it.
    It's taken him 3 years. He hasn't gotten a hearing. And 
currently the issue in the case is the preliminary ruling that 
he's not covered by the Whistleblower Protection Act, and that 
is because a loophole in the law is that it doesn't allow 
public disclosures of information whose release is specifically 
prohibited by statute.
    The Merit Board, it said, well, TSA was authorized by 
Congress to issue regulations. So when TSA issued a regulation 
that imposed blanket secrecy, virtually ending any public 
whistleblowing, that qualified as a specific statutory 
prohibition.
    Now every agency in the government has that authority, and 
if this decision sticks, it means the Whistleblower Protection 
Act rights will only exist to the extent that they are not 
contradicting agency regulations--that is hopeless--as a shield 
for government accountability.
    The bottom line is for whistleblowers seeking justice in 
serious breakdowns of government service, the MSPB is the 
Twilight Zone.
    Chairman Towns. Thank you very much.
    I yield 5 minutes to the gentleman from Maryland Mr. 
Cummings.
    Mr. Cummings. I was at another hearing.
    Thank you very much, Mr. Chairman, and thank you for 
holding this hearing.
    I think it's extremely important that we do everything in 
our power to protect whistleblowers. We had a case in Maryland 
which I got involved with where we had at one of our hospitals 
someone who blew the whistle on her superiors who knew that 
AIDS tests, HIV/AIDS, and hepatitis B tests were being 
administered by faulty machinery. I'm talking about hundreds of 
them. And all of it was hush-hush. And this happened about 4 or 
5 years ago. And by doing what she did, I believe that she 
saved a lot of lives.
    I think that when we look at--going back to your comments, 
Mr. Devine, it is so very important that we have transparency. 
Mr. Barofsky, the Special IG for TARP, told us in another 
hearing that he expected numerous cases--if I remember 
correctly, he said hundreds of them coming out of this TARP 
situation.
    And so I think that--I often say that a lot of times we 
don't act when we ought to act, and then something happens, and 
then we look back and said we wish we had. And, Mr. Chairman, I 
think that this is one of those times where we're going to have 
to act. And I know there are some that may disagree, but the 
fact is that I think America has called out for transparency 
and is--I've often heard it said that one of the greatest 
things that you can do is to shine a light so that all can see 
to address this whole issue of the kinds of problems that can 
come up in government. And one of the things I've also noticed 
is in some instances it's almost impossible to find out certain 
information unless you do have a whistleblower.
    And going back to what you were saying, Mr. Colapinto, you 
know, some kind of way we also have to figure out how to put 
people in a position where they feel comfortable even coming 
forward and that they will not be harmed themselves. Other than 
that, you might as well throw this--I mean, if we have that 
kind of situation where they feel threatened, then it--you 
won't get that kind of response.
    And in Baltimore, we have a situation now where there is no 
cooperation. We have literally about 20 percent of our most 
serious cases, like murders and whatever, not going to trial. 
Why? Because of witness intimidation. Why? Because they believe 
they are going to be harmed. It's a second cousin to this, but 
it's the same kind of concept.
    In order to address the ailments of our society, a lot of 
times you've got to have--matter of fact, most of the time 
you've got to have the cooperation of people.
    So I just have one question to all of you. One of the 
arguments that opponents of expanding whistleblower protection 
is we will give a forum to people who just want to complain 
about management or, worse, are vindictive against their 
employer and want to get even.
    I want you to respond to those critics, and I know there 
are several systems in place to weed out legitimate claims from 
the others, and I would just like to know how do we address 
that?
    Mr. Devine. Congressman, that is an objection that can be 
made to every right that Congress ever legislates. Every right 
can be abused. But you folks make a balancing test whether the 
benefits to the public outweigh the risk for the potential to 
abuse. I can't think of any legislation where the balancing 
test is more in favor or the rights than with whistleblowers. 
The benefits to the public are incredible. We've increased our 
recovery rate under the False Claims Act by almost 200 times 
annually by enfranchising whistleblowers.
    The issue is probably going to come down to a question of 
fear. What we hear over and over again is that emboldened 
whistleblowers--if they have normal rights, emboldened 
whistleblowers will bully their managers so they will be afraid 
to impose accountability when it's needed. Now, the solution to 
that probably is to hire managers who aren't afraid to exercise 
their authority. That is not a reason for secrecy.
    But the fear that we've got without this law is secrecy 
enforced by repression. When there are abuses of power that 
betray the public, that is the kind of really dangerous fear we 
have. And it's because of that fear that problems such as 
domestic surveillance turn into a blanket violation of 
constitutional rights instead of being nipped in the bud; that 
torture becomes almost a tradition because it wasn't challenged 
in a timely manner when we first started straying from the 
Geneva Convention. That is how little problems turn into 
disasters, because people are afraid to challenge illegality.
    So we don't have a whole lot of respect for the argument 
that we can't give people rights because they might scare the 
power structure.
    Chairman Towns. As we have seen from today's hearing, 
whistleblowers play a vital role in promoting government 
accountability and transparency. This has been an informative 
meeting, and I look forward to working with the administration 
and the Senate to enact the bill.
    I would like to ask unanimous consent that a number of 
written statements that we receive be submitted for the record.
    And without objection, the committee stands adjourned. And 
let me thank the witnesses for their testimony. We look forward 
to working with you as we move forward. Thank you so much.
    [Whereupon, at 1:45 p.m., the committee was adjourned.]
    [The prepared statement of Hon. Bruce Braley and additional 
information submitted for the hearing record follow:]

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